Twitter and UK libel law

Britain's Lord McAlpine was recently the un-named subject of a BBC documentary alleging child sexual abuse. On Twitter, journalists, celebrities and clued-in everyday citizens subsequently published comments making it easy to figure out who was on the hook. The problem? There was no evidence that McAlpine abused anyone, and everyone--right down to individual tweeters--are now on the hook for libel damages.

1) The legal consensus in the UK is that tweeting is a public act of publishing and that no-one should push gossipy claims of criminality lightly unless they like getting sued.

2) Britain's libel laws are freakily plaintiff-friendly.

Even people who RT'd libelous allusions to McAlpine on Twitter could be sued, the cost of a legal defense is astronomical, and McAlpine's lawyers say they have tallied thousands of individual targets. Their proposed donate to charity-or-be-sued drive is the imbroglio's most surreal moment yet--an ostensibly well-meaning gesture whose power rests on threatening people with expensive lawsuits that they cannot afford to defend, even if no libel was truly committed.

One dark irony of it all is that the BBC was trying to buff its credentials as a hunter of child abusers, having itself been exposed for harboring an egregious one for decades. Notwithstanding Lord McAlpine's innocence, and his right to reasonable justice, here's one explanation for why neither the BBC nor anyone else dared take aim at Jimmy Savile during his lifetime.

I heard that the optional ‘donate and we’ll forget about it’ thing is for the princely sum of £5. So at least his solicitors aren’t looking to bankrupt average Joe’s for retweets. Some cynical folk are claiming that it’s a cash drive, but with those figures I find it hard to believe that someone rightfully seeking justice is really trying to take advantage of anyone… especially when he’s not receiving the funds.

Interesting case though, one to watch. But ultimately it may at least prove an important lesson that just because you say something with a keyboard and pixels rather than shouting it in the street, doesn’t mean that the law suddenly evaporates. Probably a good lesson for us all.

I have really mixed views on this case. It simultaneously demonstrates why you need libel laws, and just how screwed up they are here in the UK.

On the one hand many people use Twitter as a broadcast/publishing platform. If you have hundreds of thousands of followers (like Alan Davis, one of the people who tweeted the name), then you can’t really claim that tweeting something is equivalent to a private chat in a pub. Just because it’s only 140 characters and it’s not on paper doesn’t stop it being a libel, and doesn’t mean it’s not “publishing”.

On the other hand, the vast majority of people don’t tweet things as a means of “publishing”. If, like most users, you have a few hundred followers (at most) all of whom are your friends to some degree, then you you treat it like a conversation. When you tweet you are talking to a known group, but doing it in public, much like a loud and boisterous conversation in a pub.

I think McAlpine (and everyone else) should have the right to go after people who libel them in such a clearly damaging way, but the way the law is currently written is awful.

He and his lawyers also really need to stop going after the small-fry and casual retweeters, it’s losing him a lot of sympathy.

Why not just either ignore allegations (preventing the Streisand effect) or answer them in a civil manner? Why get the law involved at all? Doing that seems to intensify the uncivil discourse and to increase the Streisand effect.
Do the U.K. libel laws actually create a more civil discourse than in a less restrictive environment such as the U.S.?

But it only applies to individuals right? Not sure how it works in the U.K but in the U.S. the government can arrest you for a crime and blab your name all over the place even if you end up being proven innocent in a court.

I’m not sure I’m afraid – it’s a subject I know very little about – but agree with in principle (even for companies tbh). The execution of such a set of laws is a different matter though, and from what I gather our implementation isn’t very good.

Incidentally, depending on the wording, I don’t think (operative word) that would be classed as libel anyway. Because the police shouldn’t be claiming you committed a crime, just that you’re suspected of it. Innocent until proven guilty and all that. Announcing that you’ve been arrested and charged with something isn’t a lie, it’s just an unfortunate and damaging fact. I could be wrong though, again this is just my understanding (hopefully someone will confirm or correct).

Good point, but it could be just as damaging, if not more so, in reality. Yet I think in most cases we require the government to be transparent in this way about who it arrests for some obvious civil liberties reasons.

People take the police to court for false accusations sometimes – at least on TV! I guess it all depends on the details. As I agree that it could be just as damaging. I don’t actually like that the police can be very public about accusations, especially given how eager the Daily Mail is for its readers to grab their pitchforks.

Just to clarify: Do you mean civil in the general sense, or in the civil/criminal law sense? Libel is a civil law in the UK as far as I’m aware.

As far as the Streisand effect is concerned, it was far too late to worry about that. McAlpine’s name was being repeated hundred of thousands of times. Alan Davis alone has 440,000 followers.

If anything, this becoming a massive story has helped McAlpine. Everyone in the UK knows who he is, and that he’s the guy wrongly accused of systematically abusing kids.

I agree with you, it would be lovely if all this sort of thing could be handled without ever involving courts. In a case like this, where it was a case of mistaken identity, I think that’s exactly what McAlpine should have done.

Genuine question, as I know nothing about this, but how would a case like this be handled in the US? If someone was maliciously spreading nasty rumours about you is there anything you can do to stop it? I assume there is some form of libel law?

We do have it, but as I understand it, it is much more friendly to the defendant than than the alleged victim than in most European countries. Public figures enjoy even less protection and there are broad exemptions for parody and issues of public concern see: http://en.wikipedia.org/wiki/Hustler_Magazine,_Inc._v._Falwell

As far as I understand it, the same sorts of exemptions apply for satire and parody in the UK, so long as it’s clear to an ordinary person that it was satirical or a parody. The Hustler vs Falwell case would (I believe) have been thrown out in the UK for the same reasons it was in the US. However I could be talking bollocks here, if there are any lawyers who want to correct me please do :)

Despite McAlpine mis-using the libel laws to go after all the small-fry, and the law itself being an ass, I do think this is exactly the sort of case that you need *some* kind of libel law to help protect against.

IANAL, but I think in the US plaintiff has to demonstrate that the preponderance of evidence shows:
1) defendant said something false
2) defendant knew it was false
3) the statement harmed plaintiff’s reputation
The extent to which the plaintiff’s reputation is harmed would, I believe, determine the damages awarded.

It’s quite hard to show someone knew a statement was false at the time it was made; on the other hand, I think it makes a lot of sense to restrict punishment to those who are knowingly lying about others. Based on some of the UK libel cases I’ve seen thrown about I tend to think the US system works better.

On the other hand, political careers are occasionally ended in the US purely through rumor and innuendo so there’s a pretty good argument to the contrary as well.

It sounds to me that somewhere there’s a nice middle-ground between those two. Our system is massively open to abuse, but the US system sounds pretty impotent in all but the most malicious of cases. Although I’m sure there’s more subtlety to the US law than your summary that might make a difference.

The Streisand Effect is only applicable where you don’t want people’s attention drawn to something you are trying to hide. Lord McAlpine isn’t trying to hide the fact that he is NOT a child-abuser. In general it’s difficult to get a retraction as widely known as the false statement it corrects, because malicious gossip is so much more interesting.

Asking people to donate a reasonable sum to charity as an apology for being involved in the spread of malicious gossip is quite a creative solution I think.

Good analogy. For most people they are having private conversations, but one’s that can be easily overheard and quoted in an ‘absolute’ form. Talking loudly in a public place, rather than broadcasting to the public applies to most Twitter users.

A lot of the power of Twitter is that it is so multi-modal. It’s publishing, microblogging, mail, IM, all in one wrapper and without even realising you’ve changed — it’s like a bicycle in the city, so versatile it’s daft. And of course, “I didn’t mean it like that” isn’t any defence. Interesting times…

I think this one will meet a buffer somewhere. The laws weren’t created with the vision of 150,000 plaintiffs on every single matter. And I won’t willingly accept that people saying “so and so tells me xyz about whatsisname” is defamatory – otherwise no-one could say anything about anyone without someone hiring a lawyer.

If someone says “peregrinus wears a g-shock – Gaaawd! – he can’t afford to PAY for a Patek”, I might feel that’s defamatory. Maybe even “he wears a g-shock”.

Also, parliamentary speech is privileged, right? How does that work? Powerful politicians get to spout off in all sorts of ways but suffer no consequences?

I reckon the law will have to home in on initiators, enhancers and embellishers, but ignore people who do the “so and so says ….” bit.

I hope someone fights this properly. I’d tweet it, but really don’t have the inclination to get involved.

The winners otherwise will be the high and mighty, and of course, the lowly and sycophantic (of course you know I mean the lawyers).

If this intrusion into peoples’ communications, written or otherwise, takes root, say welcome to the 4th Reich.

Besides, every tweet will soon be prefaced by ‘Understanding personally you otherwise undertake reasonable searches” or some such other phrase.

I think there’s a difference between someone expressing a view on your taste in watches, and someone accusing you of being a paedophile. The latter accusation consigns you to the deepest pit of hell, where even murderers and rapists look upon you with disdain and contempt.
Is it too much to ask that people think carefully before making such an accusation? Does that fact that thousands of people didn’t bother somehow make this less of a moral crime on their part?There’s a huge difference between free speech and defamation.Suggesting that having lots of people gang up unfairly on a person or a minority can lead to the 4th Reich seems to completely miss the lesson of how the 3rd Reich got started.

I know what you mean, but these areas are where the law becomes absurd,. and why people (not me, I don’t want to be sued), call it an ass. Shit, does that count as gossip?

The nature of the accusation is separate from the impact of that accusation.

Defamation is an untruth communicated about some person that harms their reputation. If I’m a famous watch dealer, plugging Rolexes, H Langes, Audermars and so on to the masses, and I do very well thankyou very much, if someone were to wander round Baselworld 2013 telling a story that although I love to sell them I don’t put enough faith in them to the time reasonably, and I actually believe they’re expensive toys, and that word gets out, then I lose my buyers, and my leveraged business goes bust, and I collapse into destitution.

Look at Ratner with his “cheap crap jewellery” statements – he did it to himself, but it shows you that the impact of statements can be massive (it ruined his business).

In my hypothetical example, the measurable impact is so huge, I could sue for a heck of a lot. A hobo accused of paedophilia? Not so much. The law has to have something to measure, to grab on to.

Talking Reichs, the point on free speech is that any limitation whatsover is undesirable, as it rapidly leads to more limitations, and so on until some instution that says it has unique access to the Great Sky God starts (and continues) killing people for transgressions.

It’s always a slippery slope. And it always goes down. And civilisation has fought a long time to get to where we are now.

The 3rd Reich worked because people informed on eachother. They spied on their neighbours, and ratted to the Nazis, who dragged those people into the night.

Taking the Twitter issue one step further, how long until law firms pay people to rat on gossips??

Now I’m not saying Lord McAlpines 100,000 defendant suit is going to lead us to the gates of hell tomorrow, but I do believe the following:

– People must not be withheld from openly talking about / querying concerns. For instance, it took long enough already (2,000 years?) for the world to know, and take action about, the Catholic Churches abuses of children, their cover-ups, their knowledge to the highest levels, their overrall rottenness and complicity (yet still they stand without apologising behind their gilded altars)

– the law is designed for the people, not the elite, and must discriminate incisively between things like defamation and passage of information. That’s why the English and Welsh common law is so good – it flexes and changes with cases, and then you get some smart cookie like Lord Denning who shatters aged givens and creates correct law that defines a safe and free future for the individual and society at large.

I mean – fuck – look at Jimmy Savile. He got away with abuse for so long because people were too afraid to say anything. From bottom, to top, people were scared.

So now we have more than 120 active police investigations, potentially many, many more real cases, all into kids who were abused and became adults with dangerous and damaging issues that stemmed from one man and his sick crusade.

I consider myself a libertarian, but I can’t agree with you that any limitation on free speech is undesirable. The point you seem to miss is that the 3rd Reich got going by spreading false and defamatory allegations about the Jews and other groups. Without that, it would have been hard for it to get off the ground. Your conclusion is exactly the wrong way around.

The limitation on free speech should be correctness. You should not be free to spread malicious lies, or to casually spread defamations without bothering to check any facts. If you do, you should be sued, and deserve no sympathy. Conversely, if what you say is true, then you should be free to say what you like, except perhaps for some highly exceptional cases which might adversely affect innocent parties.

This particular case is actually much more serious than it appears. The people who indulged in the twitter mob have probably made it much less likely that genuine victims of abuse will now come forward with allegations, and therefore they have done a great service to paedophiles everywhere. I think £5 is a very small price that is being asked of them in recompense, and almost certainly won’t cover the damage they have done.

I see your point, but take exception to your analysis of my commentary.

The point about the 4th Reich is the following: if people can be sued en masse and willy-nilly, and others can profit from lawsuits (lawyers, snitches), then people will stop saying anything. The McAlpine twitter storm is a big step in this direction. Particularly as few people, well-endowed with time and money, are capable of supporting such an egregious misuse of the legal system – it would it clear that no-one should say anything about any powerful person.

That would be analogous to feudal Britain. I’d thought the Magna Carta and ensuing progresses had taken care of that.

As for the idealistic notion that correctness should be the test for free speech. If we all cross-verified every statement we made about anyone, we’d simply seize up speech and communication.

In the law, an underlying concept of guilt is the “mens rea”. You need to have the intent to commit a crime, or a reckless disregard for the rules.

Passing a statement on with the bona fide belief (which does not require you to investigate, merely to truthfully believe) that it is true or accurate should not be pursuable.

If Martha is my friend, and I don’t regard her as a gossip, but maybe loose-tongued, and she tells me she suspects Alfred might be having an affair with Mildred, I may pass the message on that “Martha suspects Alfred might … etc”. That should not open me up to a lawsuit.

If I say “Alfred is having an affair with Mildred … and maybe Martha” then I’ve embellished, enhanced, and added to the defamation. I deserve pursuit.

So a re-tweet simply lacks substance in terms of intent.

Of course, the truth itself should never be withheld from communication. Otherwise all sorts of things get covered up. The law in England and Wales has a pretty fair set of requirements for protecting identities (eg criminals who are minors).

But then, we could wax philosophical about what truth is. The Chinese insist the Nanjing massacre occurred, but the Japanese will not acknowledge it.

And we must always be prepared for someone to get away with a defamation suit, only for information to later be discovered that reveals the original plaintiff to have been a deceiver. What then?

As for the impact on victims of abuse – I suspect it actually lowers a barrier to opening up, in that people have seen just how quickly and publicly an accusation can be spread. I could argue that the greater the number of people who know, the better the chances that your message will not be suppressed. viz Jimmy Savile – it can be perceived that many institutions suppressed suggestions and accusations, hushing victims and so on, and look where that got us.

Again, so many people heard rumours, knew things, witnessed things – but no-one tried to stop him, or pursue him, because he made it clear in his 1964(?) autobiography, and reiterated in his late 2000s interview on tape with Louis Theroux, that he would sue them, and ‘take them down with him’.

As for who has been done a great service or not – paedophiles should now be aware that when the jack pops out of the box, it won’t just be gossip in the village shop, it will be national, if not international, news. I consider that a strong disincentive to abuse.

However, false accusations should be met with fire. But we must parse those from mistaken accusations.

I do agree that the journalistic guessing game, with (was it the Guarniad?) one paper naming McAlpine, was a foul play, and rightly deserves pursuit, as does the BBC for not verifying.

But Sally Bercow? The re-tweeters? C’mon. All they really did was draw attention to McAlpine.

Yes, you make a number of good points, but surely this is a question of calibration? The phrase “extraordinary claims require extraordinary evidence” springs to mind. It is quite true that you can’t check everything, and I’m sure all of us have innocently passed on (in some way) something we thought was true but was in fact false. However, it’s one thing to gossip about some minor indiscretion, and quite another to accuse someone of paedophilia. In one case, you might cause some discomfort, in the other you can wreck a life. It just isn’t something that should be done casually.

I think you’re being very generous in suggesting that the re-tweeters didn’t have any malicious intent. Really? Even Bercow admits it was “mischievous”. Interesting characterisation. I’m sure Lord McAlpine appreciated the funny side.

You’re right though that this leaves the problem of people potentially looking the other way for fear of being sued if they make an accusation without being able to stand it up, as in the Savile situation. However, this is only the case if you think that people will immediately travel from one extreme to the other. It is true that the BBC did this, but I’d hope most people would stop somewhere in the middle, and take the view that accusations made in good faith with some evidence are fine, even if they eventually turn out to be wrong. This is why I think nobody, including McAlpine, is complaining about Steve Messham, who I think was very brave to own up to his mistake, but are complaining about the behaviour of the others in this case. There’s a vast ethical chasm between them.

“Another useful ploy is the false accusation. First, create a situation where you are wrongly accused. Then, at a convenient moment, arrange for the false accusation to be shown to be false beyond all doubt. Those who have made accusations against both the company and its management become discredited. Further accusations will then be treated with great suspicion… People believe in the facts that it suits them to believe.”

“The New Machiavelli: The Art of Politics in Business” 1999 by Lord McAlpine

The point is, if the citation attributed to Lord McAlpine is accurate, that he is a man versed in defending himself.

I haven’t delved in – who did it actually come about that an allegation was made against him? Was it this grown chap? Why on earth would he say Lord McAlpine’s name in relation to his allegation of assault? Did he pick it out of a hat of famous people?To be clear, the above (which I allegedly wrote, although I potentially have severe short-term memory issues, so cannot currently recall with certainty, although I must be clear that it is beyond my ken to know whether I remember the last thing I did as I cannot recall with certainty any diagnosis of memory loss), is in no way, or would be were I to have a clear understanding as to the motive and intent of the writer, any kind of indication, insunuation or attachment of a name to an allegation, nor do I harbor any suspicions, interest or potential profit in the making of said statement.Further, the tone with which the former paragraph is or was allegedly written, whether by me or some other typist, human, machine or other, is (or would be) in no way intended to undermine or erode the gravity of the situation and hence the rightful actions with which any associated party to the underlying set of facts, be they discernible or not. In no way is it (or would it) be intended that any statement made above be construed differently to the plain statement the words represent, on the assumption the reader is familiar with the clear and useful elocution and idiom of the average reasonable UK born and educated (said without prejudicing non-UK born or uneducated individuals in any way) within 5 miles (British Miles) of Temple Church EC4.As clarification, the usage of Temple Church as a geographic marker is (or would be) simply a matter of geographical convenience, and in now way presents an affinity or bias towards the legal world, lawyers, solicitors or barristers, nor is there any intent or motive to draw any kind of correlation with historical societies that may or may not be associated with said church, and for the utmost transparency there is not (or would not be) any kind of codification, hidden message or meaning to any statement within this set of statements, nor is the author (or would be the author) capable of rendering such codification into any document or speech.As such, the reader can (or may be) (without prejudice to illiterate people) assured that the author does not (or would not) implicate any person, living, dead, or to be introduced to life, nor any corporation, association, partnership, joined enterprise, international associations, multicultural communities, and so on ad infinitum with the intent of covering the entire scope of individual activities or any form, living, dead, ethereal, ecclesiastical, corporate or otherwise of human community in any matter whatsoever.